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After BBI blow in court, now fully implement Constitution

By John Ouma | August 25th 2021
President Mwai Kibaki displays the constitution during the promulgation of the new constitution at the Uhuru Park grounds in Nairobi, August 27, 2010. [File, Standard]

Last week, the Court of Appeal, in a majority ruling, upheld the decision of the High Court that invalidated the Constitutional (Amendment) Bill 2020 three months ago.   

The appellate court affirmed virtually all the findings of the High Court including the unconstitutionality of the BBI process.

With the BBI process now permanently – technically that is – stopped, it’s imperative to implement the 2010 Constitution fully as it is with the aim of realising its novel intent.     

Shortly after the promulgation of the 2010 Constitution, billed as one of the most progressive in the world, the political elite crafted strategies that prevented its full implementation. Thanks to egregious contravention of the rule of law by the political leadership, the Constitution has fallen short of its vision in four areas.

One, Chapter 13 addresses the question of gender equity in public service. Article 232 (i) affords adequate and equal opportunities for appointments, training and advancement at all levels of public service, at all State organs in both levels of government and state corporations.

Despite this clear prescription by the Constitution, there is still significant gender imbalance in most levels of Kenya’s public service.

Two, Article 10 speaks to the question of national values and governance principles, which include equity, justice and inclusiveness. However, Kenya is still deeply unequal, proudly unjust and inclusively exclusive.

Three, Chapter 12 under public finance introduced Article 215 that established the Commission on Revenue Allocation whose functions, among others, is to make recommendations concerning the basis for the equitable sharing of the revenue raised by the national and county governments and among the county governments.

Last year, senators were embroiled in a protracted debate about what formula should be used in distribution of revenue. The contention was whether the Senate should adopt the one-man-one-shilling formula – pushed by senators opposed to the government agenda – or the one-man-one-vote-one-shilling formula – also known as the third basis formula, and the position of the government. After weeks of drama, intimidation and arrests, the senators could not agree on a formula that the Constitution intended. 

The revised third basis formula that was eventually passed meant some historically marginalised counties like Wajir, Garissa and Kilifi received less funds than before. In short, the political leadership isn’t prepared to address inequality as anticipated by the Constitution.    

Four, devolution under Chapter 11 was introduced to decentralise power and improve service delivery. Whether it has achieved this is open to question. It is true devolution might have brought power closer to the people, but has that power been used for the benefit of the people?

In the process of devolving political power and government services, Kenya ended up devolving corruption. By the start of 2019, DPP George Kinoti had opened investigations in at least 14 counties over allegations of misappropriation of public resources and abuse of office.

To realise the original intent of the Constitution, current and future political leadership must allow its full implementation.

Mr Ouma is a First-Gen scholar  

Download the BBI Judgement by all seven Judges - Civil Appeal No. E291 of 2021
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